In Defense of Permeability

Representative democracy is a matrix that engenders and sustains five connected, but distinct, principles of modern government:

Popular sovereignty: citizens have a political voice, and their interests and preferences are reflected in leadership and policy.

Equality: the mechanisms of representative democracy are formally equal, or reflect a principle of equality—one person, one vote.

Legitimacy: the principles of popular sovereignty and equality legitimate government and policy outcomes.

Institutionalization: outcomes are structured or limited by rules and institutional mechanisms that constrain the abuse of power.

Responsiveness: capacity and will to respond to major challenges.

Each dimension of this matrix, however, may be better served by alternative mechanisms of participation or decision making.

Populism may better link politicians and voters. Leaders appeal (and respond) directly to voters, bypassing legislatures or parties that are considered hidebound, deadlocked, elitist, or captured by special interests.

Direct action and non-adversarial deliberation may do a better job of reflecting and addressing the interests of people who are poor and marginalized.

Juristocracy, or rule by judges, may do a better job of producing decisions and outcomes that are generally perceived as legitimate.

Strong constitutionalism and international financial institution oversight may be well placed to limit policy options or individual abuses of power.

Authoritarian government, unencumbered by popular will and elections, may be better placed to respond to contemporary policy challenges.

Each of these alternatives is at least potentially better able to carry out the principles of representative democracy along one particular dimension, but each alternative tends to work only at the risk of undermining some other dimension of the matrix. Populism is effective at linking leaders and voters, but works by bypassing democratic institutions, including political parties, legislatures, and rules of procedure; authoritarianism and international financial institution oversight violate the principle of popular sovereignty; and so on.

This matrix highlights the degree to which representative democracy is a balancing act whose individual tenets are inherently in some kind of tension with another. It may be in the nature of representative democracy that it operates in a state of anxiety. That anxiety is generated, in part, by the permeability of democracy. Along almost every dimension, permeability makes democracy work better, but it also exacerbates the tension among commitments that are not always compatible. In best cases, that tension is productive.

1. Popular Sovereignty

Popular sovereignty is the cornerstone of democracy—the radical idea that legitimate authority rests with the “will of the people” and not with the crown or with God. In representative democracies, elections that channel voter preferences through party systems are the standard mechanism for fulfilling that mandate. When those party systems appear unresponsive to people’s needs and preferences, however, populist politics may work better.

Populism has no necessary ideological content, despite a common tendency since the end of World War II to equate populism with fascism. Perhaps the best proof of this is the current American electoral cycle, in which both Bernie Sanders and Donald Trump, politicians at opposite ends of the ideological spectrum, are engaging in populist politics.1 They are attracting very large bases of support through a strategy that might best be described as "going rogue": both of them have risen to national stature despite, not through, the party they are running for; they are openly dismissive of political insiders; and they appeal directly to the anxieties and anger of a large segment of the American population.

Sanders and Trump are tapping into a widely held perception that there is something profoundly wrong with the United States and with our representative democracy. The number of manufacturing jobs has dropped by 36 percent in the last thirty-five years, while the population has increased by 43 percent. China's 2001 entry into the World Trade Organization has cost American labor far more than anticipated.2 And many, many people have never recovered from the loss of their home, their job, or their life savings, after 2008. Millions of Americans are living in crisis while Washington insiders promise politics as usual. The success of populism reflects a real failure of our representative democracy: people's interests and preferences are not being reflected in leadership and policies. The success of Trump and Sanders signals a more profound problem with the system. It’s the proverbial canary in the coal mine.

Yet, Adam Przeworski long ago defined democracy as institutionalized uncertainty, and one problem with populism is that it undermines institutions, leaving us with little more than uncertainty. It is not by chance that for the last seventy years or so, populism has been a hallmark of politics in places where government is notoriously unstable (Italy) and where it has been used to consolidate the power of a single individual (Argentina under Peron; Venezuela under Chavez). Advanced Western democracies with strong institutional structures were less vulnerable to populist politicians. Populism is dangerous because it undermines the institutions of democracy, but it gains traction when those institutions are institutionalizing the status quo and deflecting—rather than channeling—the interests, worries, and anger of large numbers of citizens.

2. Equality

The principle of equality is as fundamental to democracy as popular sovereignty, but even less fully realized in actual democratic systems of government. To the extent that representative democracy rarely reflects the interests or voices of all citizens equally, direct action and non-adversarial deliberation are important strategies for organizing and expressing the interests of those who are excluded. This broadly held view is well supported by examples.

Activists in Mexico and India waged a fifteen-year direct action campaign, which included protests, sit-ins, and hunger strikes, to demand a right to food. In Mexico, this campaign focused on getting a right to food in the constitution, and was successful in 2011. The campaign in India, also successful, focused on food-related legislation such as midday meals in schools.

Anna Hazare, a well-known social activist in India, initiated a hunger strike in April 2011 to demand that the government enact an anticorruption law. The hunger strike inspired massive nationwide protests in support, and the government agreed to Hazare’s demands.

In July 2012, one hundred seventy thousand people joined a protest in Tokyo against Japanese nuclear power—the largest protest in fifty years of Japanese democracy. The protest was organized by a large antinuclear movement calling for the elimination of nuclear power in Japan. They did not win, but they did create an issue that the Japanese government now feels compelled to address and debate.

These are examples in which, clearly, the focus of direct action is the state. The goal is to get the state to enact or change policy, often in egalitarian and redistributive ways. One can make the case that such movements complement representative democracy by opening up a route through which those voices that are “less equal” in formal political channels will be heard. Direct action fulfills a function that is, in fact, envisioned by the commitments to freedom of association, speech, and opposition that representative democracies include. The institutions of representative democracy should be permeable to direct action that amplifies the voices of those who are most often excluded from the public sphere.

Non-adversarial deliberation may also complement representative democracy, even though it takes some decision-making power out of the legislature. Here, the permeability is a result of delegation—the legislature has delegated that power, rather than succumbing to political or popular pressure—but this is still an instance of permeability to extrainstitutional participation.

Participatory budgeting, in one example, not only offers people a direct voice in funding allocation and other things that matter to them, but it also offers this voice to those most often excluded from democracy. Participatory budgeting is often used as an alternative when representative democracy is perceived to be failing, whether because it does not allocate funds rationally, because it is not transparent, or because it does not reflect the interests of the people. There is some evidence that participatory budgeting also produces outcomes that are more redistributive. As a mechanism, participatory budgeting may not only reflect input from voices that are often excluded by representative democracy; it may also generate greater equality.

3. Legitimacy

The legitimacy of a representative democracy is secured through its commitments to popular sovereignty and equality. It can also be attained, however, through permeability to the judiciary. In the last twenty years or so, judicial branches of government have generally grown stronger, and constitutions have grown longer.3 Economic and social rights, for example, are now common in developing world constitutions.4 One consequence of this is that judges are increasingly likely to make legal decisions with policy implications that bring the government into compliance with its constitutional obligations. Notwithstanding concerns about countermajoritarianism or locating too much power in an unelected judiciary, there are good reasons to endorse the spread of constitutionally entrenched economic and social rights, and to be hopeful that permeability to the judiciary is also a condition that can strengthen and legitimate representative democracy.

A good example here is the well-known South African case, Minister of Health and others v. Treatment Action Campaign and others, which is widely considered legitimate even though it found against the elected government. The South African constitution includes, among many other economic and social rights, a right to health. In 2002, Treatment Action Campaign, an organization dedicated to improving access to anti-retrovirals for South Africans living with HIV, launched a "constitutional challenge to restrictions on the provision of anti-retroviral drugs to HIV positive pregnant women."5 The High Court found for Treatment Action Campaign, and the Constitutional Court declined to hear the government's appeal. That decision, and many other South African court decisions that have constrained the government to take seriously the rights enshrined in the constitution, have played an important role in legitimating the post-apartheid South African government among its own population and in the international community.

4. Institutionalization

Such constraints on government are crucial to the institutional dimension of democracy—the rules, mechanisms, norms, and structures that limit majorities and the potential for abuse of power. In South Africa, and in many other countries that have written new and expanded constitutions in the last thirty years, strong constitutionalism has limited the policy options available to the democratically elected government. Often, that has been a good thing—courts have made good decisions, lives have been saved, justice has been served, and trust in government has been restored.

Nevertheless, concerns about countermajoritarianism and locating too much power in an unelected judiciary are real. Critical legal theorists have written extensively about the conservative tendencies of the law: legal decisions are made by reference to precedent, which makes law inherently conservative and backward-looking; accessing the court system is expensive; rules of evidence tend to favor people with more resources; judges are unelected elites.6 Although courts often make decisions designed to improve human well-being, nothing ensures they will do so.

The dangers associated with locating policymaking decisions outside of elected governments are further highlighted by the recent history of international financial institution (IFI) oversight in domestic policy. Governments that borrow money from IFIs such as the World Bank and the International Monetary Fund have been subject to bank oversight that limits government spending and shapes fiscal policy. When bank-imposed austerity measures became commonplace in the 1980s, the logic was that governments were behaving irresponsibly by failing to balance their budgets. Now, there is a great deal of research showing that such measures have often led to higher rates of disease and poverty and that they have curtailed economic growth, creating spirals of debt that countries struggle to escape.7 Not only do the interests of IFIs fail to align with the interests of the countries they are ostensibly trying to help, but they were also simply wrong about the effect of austerity, which is now widely recognized as a mistake.8

5. Responsiveness

Government responsiveness, which I define as the capacity and will to respond to major challenges, is the fifth dimension or principle of modern government. A number of observers, ranging from Samuel Huntington to Robert Kaplan, have advanced variations of the argument that what many countries need more than democracy is stability.9 They don’t need political voice so much as they need economic investment and a functioning system of law and order. They need governments that can get things done. Kaplan has argued that benign dictatorships are often better than democracies at maintaining quiescence, undertaking unpopular reforms, keeping labor in check, and so on. Accepting for the moment that this may sometimes be true, democracies cannot be permeable to authoritarianism. Along this dimension, permeability does not enhance the democratic project; it fundamentally undermines it.

Beyond that, the threat to government responsiveness seems now to be located elsewhere: not in the inefficiency of democratic government but in the hollowing out of the state. Nancy Fraser has identified the problem as a mismatch of scale between Westphalian states—that is, the space in which representative democracies operate—and transnational private powers, where many of the decisions that most affect human beings are made. How do we transform, or scale up, state-based representative democracies to deal with problems that somehow transcend or escape them?

The Occupy Wall Street movement has wrestled with this conundrum. For the most part, Occupy resisted identifying its demands. This is partly because it hoped to avoid limiting itself to a single issue or set of demands and partly because it was committed to remaining inclusive. But, it is also because there is nobody to address its demands to. Occupy’s concern is with global corporate power, which is not only not under the control of government, but, the movement argues, actually also controls government.

Protestors against austerity measures in Spain, Ireland, Cyprus, Portugal, and Greece have a similar conundrum. Their protests are ostensibly directed at their own governments, which have laid off workers, frozen wages and pensions, increased taxes, and banned strikes. But they know, too, that the problem is beyond their governments’ capacity to fix entities and systems that are mostly impermeable to popular opinion and demands—and they level their accusations against the IMF, the EU, and the international banking system. There is a real distinction to be drawn, I think, between the right to food, antinuclear, and anticorruption movements whose object is representative democracy, and those movements like Occupy Wall Street that can find no proper object.

And yet, the unexpected success of Bernie Sanders’ presidential campaign, in which a self-identified socialist attracts significant electoral support in the United States, may have had roots in the Occupy movement. Sanders appears to have harnessed the message and energy of that movement, channeling it from the streets to the voting booth. That shift involves convincing people that the state can still be an important agent for change. If they are right, the will of the state to respond to major challenges may depend more on building a movement and electing the right leader than it does on gaining a voice among the forces of global capital. Whether will engenders capacity is likely to remain an open question.

Note: this essay was originally submitted in May 2013 and updated by the author in March 2016. ↩

Hirschl, Ran. 2004. Juristocracy: The Origins and Consequences of the New Constitutionalism. Cambridge, MA: Harvard University Press.↩

Jung, Courtney, Ran Hirschl, and Evan Rosevear. 2014. "Economic and Social Rights in National Constitutions." American Journal of Comparative Law 62 (4): 1043–1094. ↩

ESCR-net summary of case; Paremoer, Lauren, and Courtney Jung. 2011. "The Role of Social and Economic Rights in Supporting Opposition in Postapartheid South Africa." In After Apartheid: Reinventing South Africa?, eds.Ian Shapiro and Kahreen Tebeau. Charlottesville, VA: University of Virginia Press. ↩

Milun, Kathryn, and Gerald Torres. 1995. “Translating Yonnondio by Precedent and Evidence: The Mashpee Indian Case.” In Critical Race Theory: The Key Writings that Formed the Movement, eds. Crenshaw, Gotanda, Peller, and Thomas, 177-191. New York: The New Press. ↩

Funded By

The work of the SSRC’s Anxieties of Democracy program is possible due to generous funding from the William & Flora Hewlett Foundation, the Carnegie Foundation, the Ford Foundation, the Knight Foundation and the Rockefeller Brothers Fund.

Related Programs

The Inaugural Democracy Papers were produced as part of the planning process for the SSRC’s Anxieties of Democracy program, which asks how democracies can capably address large problems in the public interest.